This unfair labor practice case is before the Authority based on the
parties' stipulation of facts under section 2429.1(a) of the Authority's
Regulations. The parties have agreed that no material issue of fact exists. The
General Counsel, the Charging Party (or Union) and the Respondent filed briefs
with the Authority.

The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the Statute)
by refusing to bargain over a proposal that is substantially identical to a
proposal found negotiable by the Authority in National Federation of Federal
Employees, Local 122 and U.S. Department of Veterans Affairs Regional Office,
Atlanta, Georgia, 47 FLRA 1118 (1993) (VA Atlanta).

For the reasons explained below, we conclude that the Respondent did
not commit the unfair labor practice alleged in the complaint. Accordingly, we
dismiss the complaint.

II. Stipulation

During collective bargaining negotiations, the Charging Party submitted
the following proposal:

Association officials will be granted not to exceed two days
annually, official time to represent the bargaining unit by visiting, phoning,
and writing to elected representatives in support of or opposition to pending
desired legislation which would impact the working conditions of employees
represented by the Association.

Stipulation at 3.

The Respondent refused to bargain over the proposal on the ground that
the proposal was inconsistent with the anti-lobbying provisions of both 18
U.S.C. § 1913 and the DOD Appropriations Act, Pub. L. No. 104-61,
§§ 8001, 8015, 109 Stat. 636, 651-54 (1996). The Respondent
claimed that the Authority's decision in VA Atlanta did not consider the
anti-lobbying provisions of either statute.

Following the Respondent's refusal to bargain, the General Counsel
issued an unfair labor practice complaint alleging that the Respondent violated
the Statute by refusing to bargain over a proposal substantially identical to a
proposal previously found negotiable by the Authority.

III. Positions of the Parties

A. The Respondent's Position

The Respondent asserts that it did not violate the Statute because the
Union's proposal is inconsistent with law. The Respondent argues that the
Authority's decision in VA Atlanta "conflicts with provisions of law,
specifically 18 U.S.C. 1913, . . . 31 U.S.C. 1341 . . . [and the]
recurring anti-lobbying provisions in [the] Department of Defense (DOD)
Appropriations Act." Respondent's Brief at 2-3.

First, the Respondent claims that 18 U.S.C. § 1913 does not allow
the use of appropriated funds in any manner intended to influence a Member of
Congress.(2) According to the Respondent, communications by Agency
personnel are prohibited unless such communications are "through the proper
official channels" or "on a request of Congress." Id. at 5. The
Respondent contends that the Union's lobbying activities do not constitute
communications through proper official channels, that there is no request by
Congress for such activities, and that neither section 7102 nor section 7131 of
the Statute expressly authorize Union officials to lobby Congress. Thus, the
Respondent argues that granting official time under the circumstances presented
would violate 18 U.S.C. § 1913. The Respondent maintains that the
language of 18 U.S.C. § 1913 is unambiguous and, therefore, "recourse
to legislative history to define the prohibition's scope is improper."
Id.

Second, the Respondent asserts that both section 8001 and section 8015
of the 1996 DOD Appropriations Act contain provisions restricting lobbying with
appropriated funds.(3) The Respondent claims that a "failure to adhere to the
anti-lobbying provisions in the DOD Appropriations Act would be a violation of
[t]he Purpose Statute, 31 U.S.C. § 1301(a), . . . [which] could
cause a violation of the Antideficiency Act, 31 U.S.C. § 1341."(4)Id. at 12.

B. The General Counsel's Position

The General Counsel maintains that the Respondent violated section
7116(a)(1) and (5) of the Statute by refusing to negotiate over the Union's
proposal because it is substantially identical to the proposal found negotiable
in VA Atlanta, 47 FLRA at 1121-22. The General Counsel requests as a
remedy that the Authority direct the Respondent to negotiate in good faith.

C. The Charging Party's Position

The Charging Party asserts that the Authority examined and
rejected the Agency's arguments regarding 18 U.S.C. § 1913 in
Department of Health and Human Services, Social Security Administration and
American Federation of Government Employees, Local 3231, 11 FLRA 7 (1983)
(HHS). The Charging Party argues that "[w]hen representing employees
under § 7131 [of the Statute], union representatives are not acting in
their 'official capacity,' 'on the job,' or in a 'duty status'" and, therefore,
are not barred from using such appropriated funds to lobby Congress. Charging
Party's Brief at 3. The Charging Party further claims that, even if the Statute
conflicts with the anti-lobbying statutes relied on by the Respondent, the
Statute would prevail because it is a more specific statute. Id. at 3
n.3.

IV. Analysis and Conclusions

A. The Basis for the Unfair Labor Practice Complaint in This
Case

It is an unfair labor practice for an agency to refuse to bargain over
a proposal that is substantially identical to one previously found negotiable
by the Authority. SeeU.S. Department of the Interior, Washington,
D.C. and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475, 479 (1996).
A respondent acts at its peril in such cases "without regard to whether [the]
respondent raises 'new' or 'old' arguments" and will be found to have violated
the Statute as long as the proposal is within the duty to bargain. Id.
(quoting U.S. Department of the Army, Fort Stewart Schools, Fort Stewart,
Georgia, 37 FLRA 409, 420 (1990)).

B. The Charging Party's Proposal Is Substantially Identical to a
Proposal Found Negotiable by the Authority

In VA Atlanta, 47 FLRA at 1121-22, the Authority found
negotiable the following proposal:

[U]nion officials shall be permitted a reasonable amount of Official
time to represent Federal Employees by visiting, phoning and writing to elected
representatives in support or opposition to pending or desired legislation
which would impact the working conditions of employees represented by
NFFE.

The Authority found, on the basis of sections 7102(1) and 7131(d) of the
Statute, that the proposal was within the duty to bargain, provided that:
(1) the employees subject to the proposal functioned as union
representatives; (2) the subject of the lobbying pertained to unit employees'
conditions of employment; and (3) the grant of official time related to labor
management activities. Id. at 1126-27.

Both the proposal in this case and the proposal in VA Atlanta
authorize official time to union officials to lobby Congress on
representational matters. No substantive differences are asserted, or apparent,
between the proposals. Accordingly, we conclude that the Charging Party's
proposal is substantially identical to the proposal the Authority found
negotiable in VA Atlanta.

C. The Respondent's Duty to Bargain Under the Statute

It is well-established that proposals that affect conditions of
employment and that are otherwise consistent with law, rule, and regulation are
encompassed by a party's duty to bargain under the Statute. SeeDepartment of Defense Dependents Schools (Alexandria, Virginia) and Overseas
Federation of Teachers, AFT, AFL-CIO, 27 FLRA 586, 601 (1987) (Overseas
Federation of Teachers). The question presented in this case is whether the
proposal is outside the Respondent's duty to bargain because it is contrary to
the anti-lobbying provisions of either 18 U.S.C. § 1913 or the 1996 DOD
Appropriations Act.(5)

1. The Proposal is Not Contrary to 18 U.S.C.
§ 1913

In HHS, 11 FLRA 7, the Authority rejected an agency argument
that 18 U.S.C. § 1913 prohibits Union representatives from conducting
lobbying activities on official time. Recently, in U.S. Department of the
Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National
Federation of Federal Employees, Local 259, 52 FLRA 920 (1997) (Member
Armendariz dissenting in part) (Corps of Engineers), the Authority once
again examined whether 18 U.S.C. § 1913 prohibits the use of official
time for union officials to lobby Congress. After considering the plain wording
of the statute,(6) its legislative history, relevant court decisions, and the
administrative opinions of the Department of Justice and the General Accounting
Office, the Authority concluded that authorizing official time for union
officials to lobby on representational issues does not violate 18 U.S.C. §
1913. Specifically, the Authority determined that section 7131(d) of the
Statute constitutes an express authorization to grant official time for
representational lobbying and, therefore, section 7131(d) is an exception to
the prohibition against lobbying contained in 18 U.S.C.
§ 1913.

In this case, the Respondent has not provided any new arguments
supporting a conclusion that the granting of official time to Union officials
to lobby Congress violates 18 U.S.C. § 1913.(7) Therefore, for the same reasons
set forth in Corps of Engineers, we conclude that the proposal is not
contrary to 18 U.S.C. § 1913.

2. The Proposal is Contrary to the 1996 DOD Appropriations
Act

The particular appropriation act provisions at issue here -- sections
8001 and 8015 of the 1996 DOD Appropriations Act -- are general provisions that
restrict lobbying and related matters.(8) As the Respondent is subject to the lobbying restrictions
contained in the 1996 DOD Appropriations Act,(9) it is appropriate to examine whether the proposal is
consistent with these provisions. Our examination is aided by consideration of
the plain wording of these provisions(10) and the administrative opinions of the General Accounting
Office (GAO).(11)

a. § 8001 of the 1996 DOD Appropriations Act

Section 8001 of the 1996 DOD Appropriations Act provides:

No part of any appropriation contained in this Act shall be used for
publicity and propaganda purposes not authorized by the
Congress.

The plain wording of section 8001 expressly prohibits the expenditure
of Federal funds for purposes "not authorized by Congress." Id. As the
allotment of official time results in payment of wages or salary, it is an
expenditure of appropriated funds.(12)Id. at 4-23. Thus, unless the proposed conduct either
does not constitute "publicity and propaganda," or is for a purpose expressly
authorized by Congress, the provision of official time would be contrary to
section 8001 of the 1996 DOD Appropriations Act.

For the reasons explained more fully in Corps of Engineers, 52
FLRA 920, sections 7102(1) and 7131(d) constitute express Congressional
authorization for agencies to grant official time for employee union
representatives to lobby Congress on representational issues. SeeCorps of Engineers, 52 FLRA at 932. Section 7102 provides that
employees, acting in their representational capacity, have the right to present
the views of their labor organization to Congress and to engage in collective
bargaining with respect to conditions of employment. Id. In subsection
(d) of section 7131 of the Statute, Congress provided that union
representatives should be granted official time in any amount that the parties
agreed to be reasonable, necessary and in the public interest "in connection
with any other matter covered" by the Statute. Id. at 933
(quoting 5 U.S.C. § 7131(d)). Representation lobbying is plainly a
matter covered by section 7102 of the Statute. As such, the express language of
section 7131(d) permits official time for this purpose where the agency and the
union agree. The fact that Congress expressly authorized official time for
matters covered by the Statute demonstrates that Congress expressly authorized
the use of appropriated funds for the proposed activities in this case as long
as the parties agree that 2 days is a reasonable amount of time.
Accordingly, based on the Authority's decision in Corps of Engineers, we
find that the proposal in this case is not inconsistent with section 8001 of
the 1996 DOD Appropriations Act.

b. § 8015 of the 1996 DOD Appropriations Act

Section 8015 of the 1996 DOD Appropriations Act provides:

None of the funds made available by this Act shall be used in any
way, directly or indirectly, to influence congressional action on any
legislation or appropriation matters pending before the
Congress.

The plain wording of section 8015 expressly prohibits the use of
appropriated funds to engage in any discussion referring to pending
legislation or appropriations. Unlike section 8001 of the 1996 DOD
Appropriations Act, section 8015 does not contain any express exceptions. In
particular, there is no exception permitting the use of appropriated funds for
discussions concerning pending legislation or appropriations. As such, this
provision does not contain the language that was central to our finding that 18
U.S.C. § 1913 and section 8001 of the 1996 DOD Appropriations Act do not
bar representational lobbying.(13) Moreover, the fact that Congress included the exception in
section 8001 of the 1996 DOD Appropriations Act and not in section 8015 of that
Act must be given meaning. SeeBFP v. Resolution Trust Corp., 511
U.S. 531, 537 (1994) ("'[I]t is generally presumed that Congress acts
intentionally and purposely when it includes particular language in one section
of a statute but omits it in another[.]'") (citing Chicago v. Environmental
Defense Fund, 511 U.S. 328, 338 (1994)).

The Union's proposal clearly states that union officials "will be
granted official time . . . [to contact Congress] in support of or opposition
to pending desired legislation[.]" Stipulation at 3 (emphasis
added). Because the Union's proposal requires the use of appropriated funds to
influence pending legislation, and because section 8015 plainly prohibits use
of appropriate funds to directly or indirectly influence pending legislation,
we find that the proposal is inconsistent with section 8015 of the 1996 DOD
Appropriations Act. The legislation does not authorize any exceptions to this
prohibition, and there is no basis for the Authority to create an exception
that Congress has not stated.(14) Consequently, we conclude that the proposal is contrary to
law, and that the Respondent was not obligated to bargain with the Union over
it.

We do not find that GAO's interpretations of provisions similar to
section 8015 support the conclusion reached by our dissenting colleague. In
this regard, GAO has interpreted such provisions as "applying primarily to
indirect or grass roots lobbying and not to direct contact with Members of
Congress." PFA at 4-171. However, GAO's description of the primary
application of these provisions does not define their "exclusive" application.
Moreover, GAO's prior interpretations of provisions similar to section 8015
were all rendered in connection with questions regarding activities by
agency -- not union -- officials.(15) In particular, GAO's interpretation was based on its view
that Congress did not intend by creating such provisions to restrict the normal
course of communication among the three branches of government. See
63 Comp. Gen. 624 (1984) (contact by federal judges and legislative
liaison activities by the Judicial Conference of the United States did not
violate publicity and propaganda provisions; contrary interpretation of such
provisions would "preclude virtually any comment by Government officials on the
policies of their agencies[.]"). SeealsoPFA at 4-171
("an interpretation of a 'pending legislation' statute which strictly
prohibited expenditures of public funds for dissemination of views on pending
legislation would preclude virtually any comment by officials on agency or
administration policy or activities.").

Here, the proposal does not concern communications among the three
branches of government. Rather, the proposal concerns communications by
union -- not agency -- officials acting in their role as bargaining unit
representatives. Union expressions of bargaining unit views on pending
legislation are not part of the normal course of communication between
officials of the Executive and Legislative branches of Government on agency or
administrative policy and activities. In these circumstances, we do not read
GAO's previous interpretations of similar pending legislation provisions to
address the question presented here.

Finally, we find no merit to the Charging Party's assertion that the
Statute should prevail over the 1996 DOD Appropriations Act because it is a
more specific statute. Section 8015 of the 1996 DOD Appropriations Act
expressly prohibits the use of appropriations for any purpose intended to
influence Congress on pending legislation or appropriations. In contrast,
section 7131(d) authorizes official time for any "matter covered by" the
Statute, including, among others, presenting the views of the union to Congress
as authorized by section 7102 of the Statute. We are unable to conclude that
this language in the Statute is more specific than the explicit and targeted
prohibition in section 8015. In addition, canons of statutory construction
provide that, where two statutes conflict, the later and more specific statute
usually controls over the earlier and more general one. SeeNatural
Resources Defense Council, Inc. v. United States Environmental Protection
Agency, 824 F.2d 1258, 1278 (1st Cir. 1987); seealsoDetweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994). Thus, the 1996 DOD
Appropriations Act prevails over the Statute.

Based on the foregoing, we are compelled to conclude that the Union's
proposal is contrary to section 8015 of the 1996 DOD Appropriations Act.(16) Accordingly, the Respondent did
not violate sections 7116(a)(1) and (5) of the Statute when it refused to
bargain over the Union's proposal. SeeOverseas Federation of
Teachers, 27 FLRA at 601.

V. Decision

The complaint is dismissed.

Member Wasserman, concurring in part and dissenting in part:

I agree with my colleagues regarding their conclusions that the
proposal is substantially identical to a proposal found negotiable by the
Authority, and that it is not contrary to 18 U.S.C. § 1913. Furthermore, I
agree that the proposal is consistent with section 8001 of the 1996 DOD
Appropriations Act. I part ways with the majority with respect to the
consistency of the proposal with section 8015 of the 1996 DOD Appropriations
Act.

As noted by the majority, supra at 11, GAO has interpreted
provisions similar to those stated in section 8015. Specifically, GAO has
interpreted the restrictions as "applying primarily to indirect or grass roots
lobbying and not to direct contact with Members of Congress." PFA at
4-171. It is clear from the wording of the proposal that the union is not
asking for appropriated funds to be used to work on grass roots lobbying
efforts. The proposal would have management grant official time to union
officials to "represent the bargaining unit by visiting, phoning and writing to
elected representatives in support of or opposition to pending desired
legislation" affecting working conditions. Stipulation at 3. Thus, the
prohibitions encompassed by provisions such as section 8015 are not applicable
to the proposal at issue.

The majority declines to apply GAO's guidance because the Comptroller
General's reasoning on this point was in the context of evaluating the
propriety of agency officials' communications regarding pending legislation. In
contrast, I believe that the communications by union officials should be given
the same credibility and protection as that of agency officials. GAO found that
Congress did not intend to limit communications between executive and
legislative branch officials by virtue of language similar to that found in
section 8015. There is no evidence that Congress intended through section 8015
to limit communications between union representatives serving on official time
and legislators.( * ) Indeed, the statutory grant of official time to union
officials is predicated on representational activities being in the public
interest. See 5 U.S.C. § 7101(a)(1).

Finally, I do not believe that Congress in effect limited the broad
grant of official time found in the Statute. The law states that "any employee
representing an exclusive representative . . . shall be granted official
time" for matters falling within the parameters of the Statute. 5 U.S.C.
§ 7131(d) (emphasis added). The restrictions in the 1996 DOD
Appropriations Act are viewed by my colleagues as the more specific and later
enactment which must prevail over the Statute. I take another view. While I
recognize the ability of Congress to restrict federal expenditures, the
suspension or repeal of a law by appropriations bill language "depends on the
intention of Congress as expressed in the statutes." United States v.
Will, 449 U.S. 200, 222 (1980). Such a clear expression of intent is
missing in this case. In United States v. Will, the court evaluated
explicit appropriations bill language which repealed or delayed the
implementation of pay increases that were authorized by law. Id. In
contrast, in this case, there is no expression that Congress intended to
preclude union officials from having the ability to communicate with Congress,
as guaranteed by section 7102, on official time, as guaranteed by section 7131.
Instead, there is only a general prohibition that previously was interpreted by
GAO to apply to grass roots lobbying.

According to the above analysis, I would find that the proposal is not
contrary to law, and that the Agency committed an unfair labor practice by its
refusal to bargain over the proposal.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. Member Wasserman's dissenting
opinion is set forth at the end of this decision.

No part of the money appropriated by any enactment of Congress shall,
in the absence of express authorization by Congress, be used directly or
indirectly to pay for any personal service, advertisement, telegram, telephone,
letter, printed or written matter, or other device, intended or designed to
influence in any manner a Member of Congress, to favor or oppose, by vote or
otherwise, any legislation or appropriation by Congress . . . ; but this shall
not prevent officers or employees of the United States or of its departments or
agencies from communicating to Members of Congress on the request of any Member
or to Congress, through the proper official channels, requests for legislation
or appropriations which they deem necessary for the efficient conduct of the
public business.

None of the funds made available by this Act shall be used in any
way, directly or indirectly, to influence congressional action on any
legislation or appropriation matters pending before the
Congress.

6. The Respondent describes the plain
wording of 18 U.S.C. § 1913 as containing only two exceptions to the
restriction on lobbying -- where the views are presented at the request of a
member of Congress or where the views are presented through proper official
channels. See Respondent's Brief at 5. However, by its express terms,
18 U.S.C. § 1913 contains an additional exception to the restriction
on lobbying: for conduct that is expressly authorized by Congress. The
Authority's holding in Corps of Engineers relied on this exception. The
Authority has already considered essentially the same arguments raised by the
Respondent herein in the Corps of Engineers decision and has rejected
viewing the plain wording of 18 U.S.C. § 1913 as prohibiting the
conduct proposed in the instant case.

7. The Respondent relies on Appendix B
of Chapter 711 of the Federal Personnel Manual (FPM) to support its claim under
section 7131 of the Statute. However, the FPM was abolished effective December
31, 1994. Accordingly, as the events that give rise to this unfair labor
practice case occurred during 1996, the FPM is not relevant to this dispute.

8. Appropriation acts often contain
conditions either "restricting the availability of the appropriations or making
them available for some particular use." Principles of Federal
Appropriations Law 2-28 (2d ed. 1991) (PFA). These conditions are
found in two forms: provisos and general provisions. As relevant here, a
general provision is separate from the appropriating language of the
legislation and "may apply solely to the act in which it is contained . . . or
it may have general applicability[.]" Id. General provisions may be
phrased as either "restrictions or positive authority." Id.

9. There is no dispute among the
parties that the Respondent's funding is derived from the 1996 DOD
Appropriations Act and that, as a result, section 8001 and section 8015 of the
1996 DOD Appropriations Act are applicable.

10. As the Supreme Court recently
explained, in construing statutes "[w]e do not start from the premise that
th[e] language is imprecise. Instead, we assume that in drafting th[e]
legislation, Congress said what it meant." U.S. v. LaBonte, 117 S. Ct.
1673, 1677 (1997).

11. GAO is the investigative arm of
Congress and is charged with examining all matters relating to the receipt and
disbursement of appropriated funds. See 31 U.S.C. § 712. One of the
functions of the Comptroller General, the head of GAO, is to render legal
decisions in advance of payments of appropriated funds when requested by
officers or heads of Federal agencies who are uncertain as to whether they have
the authority to make or authorize particular payments. SeePFA,
at 1-26.

12. None of the parties dispute that
the payment of official time is an expenditure of Federal funds. In this
regard, the Charging Party offers no support, and none is otherwise apparent,
for its claim that the dispositive issue is whether employees are "on duty"
during the lobbying activities for which official time would be granted.
Charging Party's Brief at 2.

13. We note that GAO refers to
provisions concerning "pending legislation," such as section 8015, as "narrow"
and states that "the broader 'publicity or propaganda not authorized by
Congress' version [similar to section 8001] should cover the specific type of
publicity or propaganda designed to influence pending legislation[.]"
PFA at 4-172. This distinction between the breadth of the two types of
provisions, however, does not address the significance, or the meaning, of the
phrase "except as authorized by Congress," which appears in section 8001 but
not in section 8015.

14. We fully agree with our dissenting
colleague that resolving the question whether the proposal is consistent with
law "depends on the intention of Congress as expressed in the statutes."
United States v. Will, 449 U.S. 200, 222 (1980) (citing United States
v. Mitchell, 109 U.S. 146, 150 (1993)). We find that intention clear in
this case. In addition, given the unambiguous language with which Congress has
spoken, is it not appropriate or necessary, in our view, to search for other
indicators of what Congress intended. We note, in this regard, that there is no
question Congress can alter the effect of prior legislation through an
appropriations act. SeeUnited States v. Will, 449 U.S. at
222 (citing United States v. Dickerson, 310 U.S. 554, 555 (1940)).

15. For example, GAO concluded that an
agency violated an appropriations restriction similar to section 8015 "by
expending appropriated funds to provide administrative support to [a private
trade association] in the form of staff time, supplies, and facilities, when it
knew the [trade association] was attempting to influence legislation pending
before Congress." Id. at 4-169; seealso B-128938, July
12, 1976 (agency contract with nonprofit organization to publish a newsletter
discussing pending legislation and urging readers to contact Congress regarding
pending legislation violated publicity and propaganda restrictions); B-192658,
September 1, 1978 (letter from Director of OMB to Congress urging opposition to
Presidential Reorganization plan did not violate publicity and propaganda
provision).

16. The Respondent asserts that a
failure to comply with the anti-lobbying provisions of the 1996 DOD
Appropriations Act would cause a violation of 13 U.S.C. § 1301 and 13
U.S.C. § 1341. In view of the decision we reach, it is unnecessary to
address this argument.

Dissenting Opinion Footnote Follows:

* . The differences in wording between
sections 8001 and 8015 do not persuade me to the contrary. Section 8015 cannot
be subject to an interpretation to allow communication about legislation
between agency officials and Congress but not between union officials and
Congress, because on its face, the section neither includes nor excludes either
group of paid employees from such interaction.